Report to The Judge Advocate General by the Wartime Legislation Team

• Author: by Lieutenant Colonel E. A. Gates and Major Gary V. Caaida
• Pages: 03

I. INTRODUCTION

Military Justice must be effective, efficient and fair, bath ~n times of peace and war. To this end we must constantly strwe. as military justice 1s not an end in itself. but an important means by which to promote discipline through just leadership

In 19.50. Congress promulgated the Uniform Code of .Military Justice (UCMJ).' Among the purposes articulated for enactment of the UCMJ were the need for uniformity among the military services? the desire to prevent future excessive punishments as perceived to havebeenimposedduringWoridU'arI1, andthedesiretoprohibit commanders from exercising improper command influence.3 Con-gress expressed its confidence that the new code would workequally well in times of war and peace, and would not unduly restrict the conduct of military operations.'

Xhether or not the original Code would hare fulfilied these erpectations gradually became a moot question. The United States Court af Military Appeals quickly established a new doctrine called "mil)tar? due process of law," a powerful concept whereby the court applies legal protections derived from principles applicable in ci\-ilian criminal proceedings. but not provided by the UCMJ.' In other areas, especially self-mcriminatmn. soldiers were ~nitialiy accorded greater protections than were enjoyed by defendants in civiliancourt^.^ The Military Justice Act of 1968- enhanced the role that lamyera would play ~n the maintenance of unit discipline by expanding the accused' rights to representation by legally-qualified counsel. by converting the summary court-martial to one of consensual JUTIS- diction. and by creating an independent trial judiciary composed of military judges for special as well as general courts-martial, which led to substantial modification of court-martial procedures In 1973. Secretary of Defense Laird directed that service members facing nonjudicial action under Article 15. UCMJ, would be allowed an opportunity to consult with legal counsel.i Also. the Court of Military Appeals subsequently tied the provision of legally qualified defense counsel to the use of summary courts.martlal conwctmnsq and records of nonjudicial punishmentlo for punishment enhancement and aggravation in subsesuent courts-martial.

These statutory enactments. regulatory actions, and court decisions, while certainly not inclusive serve io illustrate the"judiciaiization" of the military disciplinari sbjtem Discipline ~n the armed forces has come to depend more and mare on the actions of lawyers and the provision of legal advice. with a concomitant decline in the scape of commanders' disciplinary authorit, While the heart of the Code-the punitive articles-has remained relatiiely untouched Since 1950. the procedures and processes which dri\e the system have become labyrinthine. Concern was expressed long ago that the

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19841 WARTIME LEGISLATION

System might not perfarm adequately in time of war.ll and the iiarnings recent15 have become more insistent.'?

In 1982, because of his increasing concern that the System might not operate efficiently during major combat operations. The Judge Advocate General af the Army directed the formation of the Rar-time Legislation Team (WALT) to evaluate the military justice system and to make recammendatiansforimprovingitseffectiveness in wartime. WALT, established as a non.permanent study group. conducted Its work between August 1982 and September 1983.

11. MISSIOK

The mission of WALT *as to review the UCMJ, the Manual far Courts-Martial (MCM). Department of Defense directives. and Army regulations (AR! dealing with military Justice. The primary objective was to ensure that the military justice system in an armed conflict nould be able to function fairly and efficiently, nithout unduly burdening commanders. or unnecew.riip utilizing resour-ces. The system s-as to be equally workable in high or low intensity conflicts of short or prolonged duration. Whenever possible, proce-dures were to be streamlined and simplified, and administrative support requirements reduced. While case law was to beconsidered. it vas not to dictate the result except where case holdings were clearly premised on a constitutional or military due process basis. Specifically excepted from the study were major changes to the puniti\e articles (Subchapter X, UCZ1J!.13 Also excluded were the administrative actions. such as administrative discharges and bars to reenlistment, which sometimes complement the military justice system as alternative methods of disciplinary enforcement. The goal was to produce a complete legislative packet. including a "speaker letter,'' an implementing Presidential executive order, DOD directives. Army regulations. and any necessary letters of instruction or guidance.

111. ASSUMPTIONS AND LIMITATIONSThe study was purposely not designed as a JOint-serWCe eff0ort.l. nor were any representatives of other serrice~consulted ahout the study. It RBS believed the the efficiency of the study group could be hampered if interservice coordination WBS effected duringthe initial study. Once completed. coordination could beaccomplished todeter-mine which proposals could be implemented immediately and to gain DOD-wide acceptance for proposals which had only wartime

The assumption that same or allaftheproporalrderireduauldnat be implemented until wartime led the study group to establish another limitation-if its proposals would not he Implemented until Bartime, no radically new procedures or systems could be proposed. The introduction of a radically new military justice system at the outbreak af hostilities would ob\iously he counterproductive Sot only would it be difficult for bath active duty and reserre judge advocates to assimilate a tatali? new system just when the caseload would probably be rising, but the basic familiarity that commanders and other laymen now hare with the System would be seriously undermined. ivith no assurance af time for retraining. Because of this limitation. the Study group rejected otherwise thought-proloking concepts which were proposed by variouĉontributors: for example. suggestions for creating courts of continuing jurisdiction and for centralizing referral of cases in legal services agencies.

LVALT was also limited to considering systemic modifications which related directly to enhancing the deli\ery of legal support in wartime. hlodificatians which did not offer promise of increased agstemic efficiency ~n wartime were not ~0nsidered.l~

Upon consideration of the foregoing assumptions and limitations, WALT concluded that Its primary function should be to attempt to correct certain problem areas unique to wartime military justice and to streamiine the system by modifying or eliminating. where appropriate, detractors from efficiency through simplification of procedures and paperwork reduction. The addition of new procedures or complications was avoided whenever possible. New proce-

19841 WARTIME LEGISLATIOX

dures were recommended only when they replaced more complexor burdensome procedures.

Underlying all of the factors involved in the study was the neces-sity to keep the function of the military justice system in proper perspective. The system must contribute to the maintenanceof military discipline, as well as serving Society's interest in redressing criminal misconduct. Themilitaryjustice system isnot. however. the most important factor in maintaining discipline in combat. While the system undoubtedly enhances discipiine in units not facing combat. even to the point of helping to insall a sense of discipline in new trainees. the disciplinary contribution of military justice in combatis speculative. Accepted as more important are such factors as unit leadership. unit cohesivenesa, peer pressure, patriotism, self-discipline, and the political enviranmentsurroundingthehastilities.Further. if designed or applied incorrectly or unfairly. the military justice System can detract from discipline. American society has come to expect a high level of "due process" to be built into its punitive systems. In military Ian. this is seen in a myriad of protections, such as free legal advice or representation for nearly every adverse personnel action. redundant pretrial and past-trial reviews. and automatic appeals of courts-martial. Too many shortcuts in the system u4I lead to perceptions af unfairness, which could undercut the positive effects the system has on discipiine. WALT analyzed every proposed modification to ensure that fairness was not unduly sacrificed for efficiency. and to ensure that changes were not counterproductive to discipline

Because WALT mas formed to study the operation of the military Justice system in wartime. it was imperative that the study group develop familiarity with current combat doctrine. In developing its methodology, the study group concentrated on the environment that the military justice system would face in a combat theater. It was assumed that unit sand institutions not in prOximitytocomhat,~l.ould have to deal with fewer. and more easily resolved. hurdles.

Simplistically stated, most doctrinal development seems to focus on the large-scale. national-survival typewar. Naturally, thisis most aften expressed in terms of a NATO.Warsaw Pact confrontation in Europe. The battlefield is expected to be extremely lethal, with or without use of nuclear. chemical or biologlcai weapons. Electronic warfare will be extremely disruptive of communicatmns, particu-larly hindering tactical units' communications.

Army doctrine is presently being revised to encompass a concept called "AirLand Battle." As part of this revision, tactical units are

being reorganized into the "Corps 86" and "Division 86"structures. These reorganizations are designed to enhance the mobility. firepower and combat effectiveness of cambat units The factors of mobility, lethality. and massing of force and firepower are expected...